shabani selemani vs juma mohamed futo 2021 tzhclandd 175 29 january 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO 430 OF 2020 (Arising from Revision Application No. 13 of 2020) SHABANI SELEMANI (Administrator of the Estate of the late ABDALLAH JUMA KONGE).......................... APPLICANT VERSUS JUMA MOHAMED FUTO....................... ............RESPONDENT Date of last Order: 08.12.2020 Date of Ruling: 29.01.2021 RULING V.L. MAKANI. 3. This is an application by SHABANI SELEMANI. He is applying for this court to grant an order allowing him as a legal personal representative of the late Abdallah Juma Konge, to be joined in Land Revision No. 13 of 2020 pending in this court (Hon. V. L Makani, J) The application has been made under Order XXII Rule 4(1) of the Civil Procedure Code, Cap 33 RE 2019 (the CPC), and is supported by the affidavit of the applicant herein. The respondent has countered the application by filing his counter-affidavit. By leave of the court the application was argued by way of written submissions. The applicant's submissions were to the affect that he is an administrator of the estate of the late ABDALLAH JUMA KONGE who is the respondent in Land Revision No. 13/2020 which is pending in this honourable court. He said he is seeking to be joined in the said revision application which was filed by the respondent herein. He said that the deceased died intestate on the 28/06/2014 as evidenced by the Certificate of Death (Annexure S-l). He said that he was appointed an administrator on 08/10/2014 vide Probate and Administration Cause No.31/2014 of Chalinze Primary Court. He insisted that the respondent herein is also aware of the demise of the said ABDALLAH JUMA KONGE and he will not be prejudiced by this application in any way. He prayed for the court to grant this application with costs. The respondent did not file his submissions leading to waiver of his right to the hearing and thus the matter proceeded ex-parte against him. Having gone through the affidavits and the applicant's submission, the point for determination is whether this application has merit. The applicant has submitted the death certificate of the late ABDALLAH JUMA KONGE, he has also submitted uncontested Letter of Administration (S-l) appointing him an administrator of the estate of the deceased. Those two documents are vital evidence that ABDALLAH JUMA KONGE who is the first respondent in Land Revision No. 13 of 2020 is now deceased and the applicant herein was legally appointed the administrator of his estate. The respondent in his counter-affidavit only made general denials to these facts which did 2 not in essence controvert the applicant's appointment as an administrator. The applicant has therefore met the conditions in Order XXII Rule 4(1) of the CPC which provide: "Where one o f two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behaif, shall cause the legal representative o f the deceased defendant to be made a party and shall proceed with the suit. Basing on the above analysis, this application has merit, and it is hereby granted. The applicant is hereby jooned as the Legal Representative of the late Abdallh Juma Konge in Land Revision No. 13 of 2020. Considering the nature of the application, each party shall bear his own costs. It is so ordered. V.L. MAKANI JUDGE 29/01/2021 3